Nelson v. Spence
Supreme Court of Georgia
Intervention. Before I. J. Hofmayer, judge pro hac vice. Mitchell superior court. July 23, 1906. J. M. Spence filed an equitable petition against Perry’s Pharmacy, alleging, that he is the holder of a mortgage on the entire stock of merchandise' carried by said defendant; that said mortgage, for the sum of $4,200 principal, is due and unpaid; that said stock if not of sufficient value to cover the amount of the mortgage, and that it could be sold for a larger sum at private…
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Intervention. Before I. J. Hofmayer, judge pro hac vice. Mitchell superior court. July 23, 1906. J. M. Spence filed an equitable petition against Perry’s Pharmacy, alleging, that he is the holder of a mortgage on the entire stock of merchandise' carried by said defendant; that said mortgage, for the sum of $4,200 principal, is due and unpaid; that said stock if not of sufficient value to cover the amount of the mortgage, and that it could be sold for a larger sum at private sale than at a public sale. Wherefore he prayed that the mortgage be foreclosed, and that “a receiver be appointed to…
1Opinion of the CourtBeck, J.
1. Where the main purpose .of the suit is to foreclose a mortgage, and there is also an incidental prayer for relief appropriate to insolvency proceedings, a receiver’s possession thereunder, as to the property included in the mortgage, will not be affected by a subsequent adjudication in bankruptcy. Merry v. Jones, 119 Ga. 643, 46 S. E. 861.
2. Even if the instrument sought to be foreclosed in equity is, on its face, not a mortgage, but a bill of sale to secure a debt, it is within the power *36of a court of equity, upon proper allegations of omission from the instrument, made through the mutual…
2Cases cited2 opinions
- Carr v. Georgia Loan & Trust Co.Supreme Court of Georgia · 1899
- Merry v. JonesSupreme Court of Georgia · 1904
3Cited by22 opinions
- Augusta Land Co. v. Augusta Railway & Electric Co.Supreme Court of Georgia · 1913
- New York Life Insurance v. RhodesCourt of Appeals of Georgia · 1908
- Louisville & Nashville Railroad v. WillbanksSupreme Court of Georgia · 1909
- Sapp v. RitchSupreme Court of Georgia · 1929
- Atlanta Flooring & Insulation Co. v. RussellCourt of Appeals for the Fifth Circuit · 1945
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